Beer Law News & Legal Insight from the Brewery Attorneys at Reiser Legal.

Beer labeling, we seldom think about it. We grab a beer, read the label for ingredients and down the hatch. Why else is there a label, but to tell consumers what your wondrous tonic is comprised of? You mean there is a marketing element?

Well of course there is a marketing element; there is a reason your beer label includes flashy vocabulary and catchy imagery. The brewer is selling beer – a product (we know its more than that, but for the sake of argument…)

There is a whole mess of regulation that prohibits your favorite brew from donning a more sexy label. Beer labeling laws restrict brewers from utilizing images and names that might raise more interest in their grog. This has to be the reason that you do not see gory, sexual, or off the cuff labeling – someone is saying no.

On the container or other packaging (for example, the cardboard box surrounding a case of beer cans or the cardboard holder for a six-pack of beer bottles), you are aren’t allowed to:
• Make false statements.
• Say anything bad about a competitor’s product.
• Put obscene or tasteless writing, images or device (for example, pop-ups or microphones).
• Mislead consumers with manipulated information from tests, standards or other analytical data.
• Use a name that suggests your product is endorsed or supervised by a person or organization when it isn’t. The exception to this is if you’ve sold the product under that name for five years or more without incident.
• Make misleading guarantees. You can offer money-back guarantees.
• Use a name that suggests your product is made from distilled spirits. However, existing distilled spirits brands can co-brand themselves with beers, as long as it’s clear from the label that “Johnny Walker Summer Ale” is a malt beverage and not a distilled spirit. This goes for cocktails as well. (You can sell a mudslide-flavored beer, but it must be clear that there is no vodka in the beverage.)
• Use a design or image that simulates a government stamp, meaning no presidential seals, armed services insignias, fire or police emblems, currency graphics or state flags.
• Claim or imply the health benefits of your product.
• Direct consumers to a third-party for information about the health benefits of your product or ingredients therein.

Yuck. You mean to tell us that we need to figure what is “obscene and tasteless” before we print 1000 bottle labels? Statutory ambiguity in the regulations leads to too much discretion for Alcohol and Tobacco Tax and Trade Bureau (TTB) officials, the body entrusted with the power to shut down product packaging and labeling.

You can read more about the TTB powers, rights and regulations on their website’s “labeling” page. For all you nerds out there, the beer labeling laws are located at 27 CFR Part 7, Labeling and Advertising of Malt Beverages and 27 CFR Part 16, Alcoholic Beverage Health Warning Statement. Exhilarating reading.

So who is the rouge challenger of beer labeling? I think that no one goes above and beyond the call of duty to fight restriction better than Scotland’s BrewDog. BrewDog has again and again toyed with regulators and private organizations formed to restrict alcohol marketing devices.

The Portman Group is one such private organization. Here is their mission statement:

“Just as people should show personal responsibility when drinking alcohol, companies must demonstrate responsibility in the way that they conduct their business.

We work with drinks producers to raise standards of alcohol marketing. We challenge companies to be socially responsible and inspire them to achieve best practice.”

Well then, what say you Portman Group about BrewDog’s recent super heavy alcohol releases? They didn’t like it. Shocker.

BrewDog’s release of the 18.2% brew Tokyo, included labeling which implies that life sometimes needs excess – this beer is for those times. Apparently that struck a cord with Portman, who released the following statement:

Portman Group Chief Executive David Poley said: “We don’t regulate the alcohol content of drinks but we do control how they are promoted. It’s obviously unwise for any company to urge consumers to drink to excess.

BrewDog’s response……target major producers who push 24 packs of Keystone Light, Natural Light and plethora of “light” products, the sole intention of which is to drink in heavy quantity in party atmospheres.

“They should perhaps concentrate their efforts on targeting the brands selling 24 cans of lager for £7 – where literal excess is contributing to Scotland’s problem with alcohol.”

So, the battle comes down to whether a restriction unfairly restricts craft brewers who brew at a high level of alcohol, but less volume, versus those massive producers who keep the ABV low, but package in massive volume. Remember 24 cans of 12 oz is 288 oz. The price of a BrewDog Tokyo’s 22 oz bottle is roughly 18.00, whereas a case of Keystone Light is roughly 16.00. Hint: there is much more alcohol in that case of Keystone.

You can take many different angles on this argument, but the result should be that beer is a changing industry that requires a new approach to regulation. No longer is the beer market wholly comprised of sub-5% malt beverages. The craft industry has made beer climb towards the ranks of spirits. Beer is no longer only consumed in heavy quantities, but can also be enjoyed one bottle at a time, over a lengthy period of time.

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